Opinion
93 Civ. 7907 (MBM).
December 19, 2000.
Ruth Aldarondo, Brooklyn, NY, (Plaintiff pro se).
Charlotte Bilbow, Esq., Erin A. Sidaras, Esq., Rivkin, Radler Kremer, Brooklyn, NY, (Attorneys for Defendants).
OPINION ORDER
In 1993, plaintiff Ruth Aldarondo was one of nine plaintiffs who filed a negligence and strict liability action against defendants General Instrument Corporation, Amtote International Inc., and Amtote International, Inc., also known as American Totalisator Company, a subsidiary of General Instrument Corporation. Plaintiffs alleged that their use of defendants' keyboards caused repetitive stress injuries. In March 1995, the case was dismissed with prejudice as to two of the plaintiffs. In May 1999, the case was discontinued with prejudice as to six additional plaintiffs. Aldarondo's claim alone remained open. Defendants now move for summary judgment against Aldarondo on statute of limitations grounds. For the reasons stated below, defendants' motion is granted.
I.
The following facts are taken from the complaint and plaintiff's submissions and are presented in the light most favorable to plaintiff. According to the complaint, Aldarondo was employed by the New York City Off-Track Betting Corporation from April 1977 through at least the 1993 filing. (Compl. ¶ 10) During her employment, Aldarondo continuously used two keyboards manufactured by defendants. (Compl. ¶ 11) The complaint further alleges that in or about June 1988, Aldarondo "began to experience some symptoms such as numbness, tingling, pain and/or sensory motor impairments of the upper extremities, neck and torso." (Compl. ¶ 12; Def. 56.1 ¶ 2) In her response to defendants' motion, Aldarondo concedes that during the summer of 1988 she had a "problem on [her] right hand," and was given medication which eliminated the pain until 1992, when she began to have pain in her hands, neck, lower back and shoulder. (Aldarondo Decl.) Notwithstanding her averment that she experienced pain in her hand in 1988, Aldarondo claims that her symptoms "[were] detected in 1992 not 1988." (Id.)
II.
Claims for repetitive stress injuries in New York must be brought within three years of the onset of symptoms or the last use of the keyboard, whichever is earlier., See N.Y. C.P.L.R. § 214 (McKinney 1990 Supp. 2000) (three year statute of limitations for personal injury claims); Blanco v. American Teleohone Telearaph Co., 90 N.Y.2d 757, 764, 666 N.Y.S.2d 536, 538 (1997) (holding that cause of action for repetitive stress injuries accrues at the onset of symptoms or last use of keyboard, whichever is earlier).
Because jurisdiction in this case is based on diversity of citizenship, and this court sits in New York, the New York statute of limitations applies. See Stuart v. American Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998), cert. denied, 526 U.S. 1065 (1999).
When making a motion for summary judgment, a party may "take advantage of any admissions" in the opposing party's complaint. Ratner v. Young, 465 F. Supp. 386, 389 n. 5 (D.C. Virgin Islands 1979 see Frederic P. Wiedersum Assoc. v. National Homes Constr. Corp., 520 F.2d 62, 65 (2d Cir. 1976) (finding complaint admissible at trial); Jarnvagsstyrelsen v.Dexter Carpenter, Inc., 32 F.2d 195, 197 (2d Cir. 1929) (finding pleading prepared by an attorney to be an admission). Defendants point to Aldarondo's complaint, which states that in or about June 1988, she "began to experience some symptoms such as numbness, tingling, pain and/or sensory motor impairments of the upper extremities, neck and torso." (Compl. ¶ 12; Def. 56.1 ¶ 2). Based on this statement, defendants contend that Aldarondo's symptoms began in 1988 and that her claim is therefore time-barred because she filed in 1993, more than three years later. (Def. 56.1 ¶ 5)
Aldarondo filed a response to defendants' motion, which consisted of a letter written by Aldarondo, copies of correspondence between herself and her attorneys, and one recent medical record. The court's order requesting her response did not inform Aldarondo that her statement describing facts known to her needed to be sworn to be admissible as an affidavit, or that it needed to be in the form of a Local Rule 56.1 Statement. Therefore, Aldarondo's letter in response to defendant's motion will be considered. See Wheeler v. Corporation Counsel of N.Y.C., 2000 WL 1760947, at *2 (S.D.N.Y. 2000) (treating signed, albeit unsworn, submissions by pro se plaintiff as complying with Local Rule 56.1). The correspondence and recent medical record submitted by Aldarondo are not relevant to the onset of her symptoms.
The Second Circuit, in Vital v. Interfaith Med. Ctr., 168 F.3d 615, 621 (1999), reversed a district court's grant of summary judgment because neither the court nor opposing counsel had informed the pro se plaintiff of the "nature and consequences" of summary judgment. When defendants filed this motion on May 3, 2000, Ms. Aldarondo was proceeding pro se. Although defendants failed to serve the notice required by Local Rule 56.2, on May 19, 2000, this court held a conference and issued an order instructing Aldarondo to submit a written statement describing facts known to her, documents and other evidence indicating why defendants' motion to dismiss should not be granted. The Court informed her that if she failed to make such a submission, her case would be dismissed. The conference and subsequent order made Aldarondo aware of the nature and consequences of summary judgment and satisfied the notice requirements set down in Vital.
In her letter, Aldarondo states: "True I did have a problem on my right hand in the summer of 1988[.] I did go to see the doctor and was given naprosyn for relief of my pain and was told to return in 2 weeks if I still had the pain. I did not have any pain [therefore] there was no need to return." (Aldarondo Decl.) However, Aldarondo claims later in the letter that her symptoms were "detected in 1992 not 1988." (Id.)
A pro se party's papers are to be read liberally and interpreted to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Aldarondo's claim that her "symptoms [were] detected in 1992, not 1988" has two possible interpretations. (Aldarondo Decl.) First, her use of the word detected may be meant to suggest that her symptoms were first diagnosed by medical personnel in 1992. However, as Blanco makes clear, a cause of action for repetitive stress injuries accrues not at the point of diagnosis, but when symptoms begin or upon last use of the keyboard. 90 N.Y.2d at 774.
Alternatively, Aldarondo's statement that her symptoms were detected in 1992 may be intended to plainly contradict defendant's assertion that the 1988 onset of symptoms prevents Aldarondo from pursuing her claim further. However, in countering defendants' argument, Aldarondo also contradicts her own statements that she suffered symptoms in 1988, specifically pain in her hands. Aldarondo cannot create a genuine issue of material fact by contradicting herself. Cf. Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987) (citations omitted) (explaining that an affidavit contradicting earlier deposition testimony should be disregarded on motion for summary judgment).
Summary judgment is proper if, viewing all evidence in the light, most favorable to the nonmoving party, there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Buttry v. General Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995). These principles apply not only to summary judgment motions based on the merits of a claim, but also to motions based on affirmative defenses such as the statute of limitations. Id. There is no genuine issue of material fact regarding the onset of Aldarondo's symptoms. Her admission in the complaint that her symptoms began in 1988 and the information she recounts in her letter about the "problem with her hands" in 1988 compel the conclusion that her symptoms began in 1988. No reasonable jury could conclude, based solely on Aldarondo's contradictory assertion that her symptoms "were detected in 1992 not 1988, " that Aldarondo's symptoms began after the summer of 1988. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Because Aldarondo's symptoms began in 1988, her claim is barred by the three year statute of limitations.
* * *
For the reasons set forth above, defendants' motion for summary judgment is granted.
SO ORDERED: